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Title 葛藤する法廷（２） : 『法律新聞』の描いた裁判官・民事訴訟・そして近代日本

Author(s) 水野, 浩二

Citation 北大法学論集, 67(5), 47-107

Issue Date 2017-01-31

Doc URL http://hdl.handle.net/2115/64413

Type bulletin (article)

Additional Information There are other files related to this item in HUSCAP. Check the above URL.

File Information lawreview_vol67no5_03summary.pdf (Summary of Contents)

Hokkaido University Collection of Scholarly and Academic Papers : HUSCAP

III

Vol.67 No.5（2017） The Hokkaido Law Review

北法67（5・490）1808

“Muddling through” of Modern Japanese Judges and Civil Procedure: Images in Horitsu Shimbun (1900-1926) （2）

Koji Mizuno＊

　In Horitsu Shimbun during the period of Meiji Civil Procedure Code (1891),

we can recognize consensus among legal practitioners (judges and attorneys

alike) that in proof-taking also, as in fixing issues, party-control principle

should be mitigated and judge should intervene more actively in order to

clarify “truth”. Practitioners were aware of what led to “untruthful”

judgements: judges exercised their directive power too formalistically and

passively in proof-taking, technical problems in procedure were not little,

practice of preventive law was not yet so widespread even in commerce….

In Horitsu Shimbun attorneys and judges proposed quite often practical ideas

in order to improve this situation and approach “truth”. Sometimes they

tended to rely on paternalism and long for ideal, “wise and warm-hearted”

judges, but it was only a natural reaction for practitioners who were

confronted against “mission impossible”, i.e. accommodate modern western

law to Japanese society in too short a time. In fact, some of their proposal

were going to be accepted in civil justice reform at the end of Taisho-era (e.g.

Taisho-revision (1926)), although stance of lawmakers was quite moderate as

compared to that of practitioners.

　In lawmakers’ consideration toward Taisho-revision, judge’s directive

power was linked with oral discussion (Mündlichkeit): they thought judge

could fix issues, take evidence, and approach “truth” better by communicating

orally than relying on written elements (Schriftlichkeit). Among practitioners,

however, merits of oral discussion remained hardly recognized, because

hearing had come to be done under Meiji Civil Procedure Code mainly in

writing in order to make procedure quicker, therefore practitioners had no

actual interest in how to realize oral discussion.

＊　Professor. Hokkaido University Graduate School of Law